Strike 3 Holdings, LLC v. Doe
- Vyskocil
- 1:22-cv-03848
- U.S. District Court · Southern District of New York
- 4
In Strike 3 Holdings v. John Doe, Judge Vyskocil allowed early discovery so Verizon could identify the defendant accused of copyright infringement.
Strike 3 Holdings, LLC may obtain John Doe’s name and address from Verizon through an early Rule 45 subpoena. John Doe’s identifying information is subject to the order’s use restriction, and Verizon must respond as required by the order and applicable law.
What happened
Strike 3 Holdings, LLC sued John Doe, whose internet provider had assigned the IP address 74.108.28.58, alleging that Doe infringed its copyrighted works through BitTorrent. Strike 3 asked to subpoena Verizon Fios before the parties held their required discovery conference.
The court found that Strike 3 had made an initial showing of copyright infringement and that its request for Doe’s name and address was specific. The court also found no other reliable way to identify Doe, that the information was needed to continue the case, and that Doe had only a limited privacy interest in the alleged sharing of copyrighted material.
Judge Mary Kay Vyskocil granted Strike 3’s motion and authorized a subpoena to Verizon seeking Doe’s name and address. Strike 3 must give Verizon a copy of the order, and it may use the information only to prosecute this case.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:22-cv-03848
- Vyskocil
- Jan. 19, 2023
Background
Strike 3 Holdings, LLC sued a John Doe defendant identified in the complaint by an IP address, 74.108.28.58. Strike 3 alleged that the defendant used the BitTorrent file-sharing network to download and distribute Strike 3’s copyrighted works. Because the defendant’s identity was unknown, Strike 3 asked for permission to serve Verizon Fios, the internet service provider, with a subpoena before the parties held the discovery conference ordinarily required by Federal Rule of Civil Procedure 26(f).
Legal standard
Federal Rule of Civil Procedure 26(d)(1) generally prevents discovery before the Rule 26(f) conference unless a court authorizes it. Courts apply a flexible reasonableness-and-good-cause standard to requests for early discovery. In copyright-infringement cases, the relevant considerations include whether the plaintiff has made an initial showing of infringement, whether the request is specific, whether other ways exist to obtain the information, whether the information is needed to pursue the claim, and the defendant’s expectation of privacy.
Court’s analysis
The court found that Strike 3 had made an initial showing of copyright infringement. Strike 3 identified the copyrighted works and provided allegations and supporting declarations describing how the defendant allegedly copied them, including the dates and times of the alleged infringement.
The court also found that Strike 3’s request was narrowly limited to John Doe’s true name and permanent address. The court was not aware of another way to reliably identify the defendant because BitTorrent provides substantial anonymity. Strike 3 explained that identification required comparing the alleged infringement’s date and time with information in Verizon’s subscriber records.
The court further concluded that the information was necessary because Strike 3 could not identify and serve the defendant without subpoenaing the internet service provider. It also noted that routine deletion by internet service providers could result in loss of the information. Finally, the court determined that internet subscribers have a minimal expectation of privacy in sharing copyrighted material, as alleged here.
Order
Judge Mary Kay Vyskocil granted Strike 3’s motion. The court authorized Strike 3 to serve Verizon with a Rule 45 subpoena seeking the name and address of the defendant to whom Verizon assigned the IP address identified in the complaint. Strike 3 must serve Verizon with a copy of the order at the same time as the subpoena. If Verizon qualifies as a cable operator under the cited federal statute, it must comply with the applicable disclosure provision. Strike 3 may use information obtained through the subpoena only to prosecute its claims in this case. The clerk was directed to terminate the motion at docket entry 6.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.